Stokes Wagner Law Firm
Stokes Wagner

Today, on September 18, 2019, California Governor Newsom signed Assembly Bill 5 (AB-5), a landmark piece of legislation that codifies the ABC test and will significantly limit most employers’ use of independent contractors.

Last year, in April 2018, the California Supreme Court rocked the State’s labor and employment landscape with the decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (“Dynamex”). The court’s decision changed the way employers classified independent contractors from the longstanding Borello test (an eleven-factor test with no single factor being determinative of a workers’ classification) to a much stricter “ABC” test.

Starting on January 1, 2020, the ABC test becomes state law. California will consider a person providing labor to be an employee of a hiring entity unless:

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Are you familiar with PAGA? Do you have a PAGA claim for unpaid wages filed against you right now? If yes, this recent California Supreme Court case may apply to you. (ZB, N.A. v. Superior Court).

What is PAGA? In a nutshell, the Private Attorney General’s Act (“PAGA”), is a California state statutory scheme within the Labor Code that allows aggrieved employees to step into the shoes of the State and enforce California’s Labor Code provisions by filing lawsuits against their employer to recover civil penalties. PAGA is considered a representative action, as an aggrieved employee is suing on behalf of both themselves and their similarly situated colleagues. PAGA claims may not be arbitrated even if an employee signs an arbitration agreement. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348).

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Last month, the United States Court of Appeals for the Ninth Circuit certified two questions of state law to the California Supreme Court:

  1. Does the absence of a formal policy regarding meal and rest breaks violate California law?
  2. Does an employer’s failure to keep records for meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided?

The answers to these questions could profoundly affect the way employers in the state notify employees and keep records of meal and rest breaks.

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California employers now have until January 1, 2021, to provide sexual harassment training to their non-supervisory employees.

Last year, California passed SB 1343, which expanded sexual harassment training requirements for employers. All employers with five or more employees were required to provide sexual harassment training to non-supervisory (or “hourly”) employees by January 1, 2020. These employers are now required to provide sexual harassment training to employees as follows:

• Supervisors/Managers must receive two hours of training; • Non-supervisory employees must receive one hour of training.

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A recent federal court decision reminds employers that an employee’s electronic acceptance of an arbitration agreement may not, by itself, be enough to prove that the employee has agreed to arbitrate. In Shockley v. PrimeLending, the U.S. Court of Appeals for the Eight Circuit recently affirmed the lower court’s decision to deny the employer’s motion to compel arbitration where the arbitration agreement was signed via the employer’s automated intranet system.

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The National Labor Relations Board (the “Board”) recently issued a precedent-reversing ruling on August 23, 2019, that allows employers to bar non-employees from leafletting on their premises. In its decision, the Board held that contractor employees are not generally entitled to the same National Labor Relations Act (NLRA) Section 7 access rights as the property owner’s employees.

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On August 27, 2019, the Santa Monica City Council voted unanimously to pass an ordinance providing certain protections for hotel workers, with particular focus on Room Attendants, working in the city of Santa Monica. The City Council heard lengthy public comment on both sides of the proposed ordinance, with Unite Here’s Local 11 being both the most numerous and the most outspoken in favor of the ordinance.

At the close of public comment, changes were made to the ordinance as initially proposed. These changes, in large part, only made the ordinance more restrictive on hotel employers. The following is a summary of the ordinance’s requirements. All the following requirements will become effective on January 1, 2020, unless otherwise specified.

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The State of California recently passed SB-83, which extends Paid Family Leave benefits from six to eight weeks for claims that start on or after July 1, 2020.

CA’s Paid Family Leave program (“PFL”) is a state disability insurance program. PFL provides up to eight weeks of wage replacement benefits to employees who take time off work to care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner. PFL can also provide eight weeks for benefits to employees who take time off to bond with a minor child within one year of the birth or placement of the child in connection with foster care or adoption.

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Last year the Miami Beach City Commission passed a law requiring all hotels within the City of Miami Beach to provide certain employees with panic buttons by September 15, 2019. Modeled after Chicago’s 2018 safety-button ordinance, the new law applies not only to housekeepers or room attendants but also to minibar attendants and room service servers. Will your property be ready?

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On August 9, the National Labor Relations Board released three proposed new rules designed to ease employees’ ability to avoid unionization or decertify unions.

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